On August 16th of this year, U.S. Attorney General Jeff Sessions issued an official order on the Matter of L-A-B-R-. The primary purpose of that order is to speed up immigration removal proceedings by restricting the ability of immigration judges to grant continuances.
It does so by implementing a “good cause” standard, which disqualifies some immigrants from seeking a continuance. Basically, this means that judges are more likely to simply decide your case then and there, rather than waiting for other factors such as visa applications.
In this article, we’ll talk about what this new directive means for those currently involved in removal proceedings. We’ll also define Sessions’ good cause standard based on the information we currently have available.
However, keep in mind that this order is a very new development. It is likely that it will take months to fully understand the newly-defined good cause standard, and still longer to see its full effects.
What is a Continuance?
In immigration law, a continuance is a temporary pause on removal proceedings. In order to be eligible or a continuance, you and your lawyer must first file a motion for a continuance. After you do so, the immigration judge overseeing your case will either grant or refuse to grant the continuance you motioned for.
Essentially, a continuance means ICE can’t immediately deport you, but you also don’t have any formal status in the U.S. Basically, your case is swept under the rug until a later date.
The length of this continuance is up to the discretion of the immigration judge overseeing your case. In most cases, it will depend on the reason for your request.
For example, a medical continuance might last until you are well enough to attend court. A continuance for a family emergency, on the other hand, may only last a few days.
What are continuances used for?
People involved in deportation proceedings seek continuances for a variety of reasons. As stated above, you might apply for a continuance due to an unexpected medical or family emergency. Similarly, you should apply for a continuance if you have multiple court appointments scheduled for the same time.
The continuance we’ll focus on here, however, has more to do with USCIS. Judges issue this type of continuance when an alien in removal proceedings is also the subject of a visa petition. In these cases, the individual’s lawyer will usually file a continuance while the individual awaits a decision from USCIS or another government agency.
The idea behind this is that judges didn’t want to deport someone while they’re waiting for their visa approval. However, at the same time this has created a serious backlog in the immigration courts, since often the application process for visas can take several years.
This huge waiting period is the reason judges would issue continuances, to essentially clear their docket and return to the issue several years down the line.
This practice could change, however, as a result of Jeff Sessions’ new order.
What is the Matter of L-A-B-R-?
There is a good chance that the continuance process will change significantly in the near future due to Jeff Sessions’ ruling on the Matter of L-A-B-R-. In this order, Sessions clarifies that an immigration judge must have “good cause” to grant a continuance. He then lays out what exactly “good cause” looks like.
It’s important to note that the explicit goal of Session’s ruling is to “provide a check on immigration judges’ authority to continuances,” and to reduce the total number of continuances granted.
Furthermore, the Attorney General’s office has the broad power to implement and enforce this standard. Thus, immigrants and their lawyers should expect, and prepare, to encounter significant challenges in obtaining continuances moving forward.
The Good Cause Standard
According to law, an immigration judge must have “good cause” for granting a continuance. Before Matter of L-A-B-R-, what constituted good cause was largely a matter of the individual immigration judge’s discretion.
Matter of L-A-B-R- changed that by imposing a set of explicit guidelines which Immigration Judges must use.
According to Matter of L-A-B-R-, an immigration judge should primarily consider the following two factors when granting a continuance:
- The likelihood that the motioning individual will receive “collateral relief.”
- This includes visas adjudicated by USCIS, asylum applications, marriage visas, and the like.
- Whether receiving such relief will affect the individual’s removal case.
If an immigration judge decides that either seems unlikely, the attorney general’s order encourages them not to grant a continuance. The change is that the judge must have a relative certainty that USCIS will approve the individual. The individual must prove they have a good reason for the continuance, not “any reason or no reason at all.”
Matter of L-A-B-R- also lays out a number of “secondary factors” which immigration judge might consider when choosing to grant a continuance. If the primary considerations seem uncertain, an immigration judge’s decision to grant a continuance will rely on these factors instead.
Examples include the diligence of the respondent in filing their paperwork, the opinion of the Department of Homeland Security, and concerns relating to administrative efficiency.
What can I do if a Judge Denies my Motion for Continuance?
Fortunately, there are two options available to you if a judge denies your motion for a continuance. These consist of (1) making an interlocutory appeal (appealing before the trial is concluded), and (2) appealing the judge’s removal order.
In either case, you will file an appeal with the Board of Immigration Appeals.
Between the two types, interlocutory appeals are by far the least common. That’s because the BIA only considers interlocutory appeals in cases where jurisdictional questions or abuses of power are a consideration.
On the other hand, you may appeal a judge’s removal order under most circumstances, barring certain criminal convictions.
In order for your appeal to be successful, you must prove that the denial of a continuance both caused you harm and affected the outcome of your case. If successful, the BIA will generally grant you the continuance you asked for.
If your rights (such as your right to due process) were violated, they may even grant you an entirely new trial instead.
Matter of L-A-B-R- is a relatively new directive, and the full effects will likely remain unclear for some time. One thing, however, is certain.
If you are involved in removal proceedings, or believe you will be, you need to contact an immigration lawyer immediately. The immigration courts are going through significant changes right now, and only an experienced lawyer can help you navigate through the new pitfalls, problems, and other growing pains which come out of these changes.